The doctrine of prior restraint and the more potent contempt of court provisions have the potential to disturb the relationship between the judiciary and media

Today is the anniversary of the imposition of the Emergency in India in 1975. The day also marks the anniversary of the first introduction of press censorship since Independence, as the two emergencies of 1962 and 1971, declared prior to 1975, were devoid of censorship. On June 26, 1975, the Indira Gandhi government used the Defence of India Rules, 1971 to impose the Censorship Order, requiring every newspaper, periodical, or other document to submit any news, comment, rumour or other report relating to a list of specified subjects to an authorised officer for scrutiny before publication. The government kept expanding this list till the Censorship Order was withdrawn on March 21, 1977 coinciding with revocation of the Emergency.

If the history of censorship in modern India is a brief one, this is due at least in part to the judiciary, which has built a natural alliance with the media against any onslaught on the freedom of the press by the executive and legislature. Press freedom has been interpreted by the Supreme Court as an integral part of the freedom of expression, guaranteed by the Constitution under Article 19(1)(a) and subject to only certain reasonable restrictions specified under Article 19(2).

In return, the judiciary’s expectation is that the press will mould public opinion in favour of its independence from executive-legislative interference and ensure the latter’s compliance with its activist orders.

Seminal cases

The test of this alliance was evident during the Emergency itself, when, as the famous saying goes, institutions crawled when asked to bend. Two High Court judgments stand out, when even the Supreme Court had delivered a pro-Emergency verdict in the infamous A.D.M. Jabalpur case.

One was the Bombay High Court’s judgment in Binod Rao v. Minocher Rustom Masani, delivered by Justice Dinshah Pirosha Madon and Justice Madhukar Hiralal Kania on February 10, 1976. Masani was the Editor of the monthly journal, Freedom First, which was subjected to censorship. A single judge of the High Court, Justice R.P. Bhatt had already granted relief, by setting aside the censorship orders against the magazine, which was under appeal before the Division Bench. The High Court held that except in two out of 11 items censored, it did not find any intention or likelihood of the censored articles creating disorder or disturbance of law and order or incitement to violence. It held that most of the consequences contemplated by the censor were fanciful and far-fetched, and that the view taken by it was such as no person acting rationally could ever possibly take.

The other was the Gujarat High Court’s judgment in Chunibhai Vaidya v. H.J.D’Penha (Special Civil Application No.141 of 1976), delivered on March 22, 1976 by a Bench comprising Justice J.B. Mehta and S.H. Sheth. In this case, copies of Bhumiputra, a journal dedicated to Sarvodaya, were forfeited after it had published a report of a civil liberties conference held at Ahmedabad. The court held that it is wrong to think that once the legislature has made the law which places restrictions on or curtails the inherent and natural right of a citizen to speak and express himself, it is open to the executive to do anything which it likes irrespective of what the law empowers it to do and how much forbidden area it craves out. The Court also refused to concede that there is any nexus between the forfeiture order and public safety and order, as claimed by the Chief Censor to the Government.

Last year, the Supreme Court’s five-judge Constitution Bench relied on these two cases in its judgment in

Sahara India Real Estate Corp. Ltd. & Ors vs. Securities and Exchange Board of India, (known as the legal reporting-media guidelines case), to buttress its holding that “prior restraint” per se (on the publication) has not been rejected as constitutionally impermissible, and to draw a distinction between “prior restraint” per se and cases of misuse of powers — of “pre-censorship” — which were corrected by the courts.

The Supreme Court, in this case, was looking for legal justifications for prior restraint in order to defend its doctrine of postponement of publication or publicity of courtroom proceedings. The doctrine allows a writ court to grant preventive relief, if a litigant seeks an order of postponement of publication or broadcast or reporting of certain phases of the trial in cases of real and substantial risk of prejudice to the proper administration of justice or to the fairness of trial. Ironically, the Constitution Bench relied on cases which ought to be celebrated for their contribution to freedom of the press in order to place further restrictions on that freedom. Since no litigant has so far sought to temporarily injunct the media, the precise implications of the Supreme Court’s ruling have not yet become apparent.

Prior restraint is just one aspect of the tension between judiciary and media. The other is contempt of court. The Supreme Court evolved the doctrine of postponement, ostensibly to prevent cases of contempt that may arise if the media were free to report, even if there is real and substantial risk of prejudice to the proper administration of justice or to the fairness of trial. But prior restraint in the age of social media makes little sense and is likely to be ineffective. It is reasonable to suggest that were the two High Court judgments, delivered during the Emergency, to be written today, the judges might have probably concluded that prior restraint per se is impractical, if not impermissible, because of the growing presence of social media.

Rather than prior restraint, it is the chilling effect of certain provisions of the Contempt of Court Act, 1971 and its likely interpretation by the judiciary which has the potential to disturb the relationship between the two natural allies.

Weak protection

The 2006 amendment to the Act providing for truth as a valid defence in contempt proceedings has not really led to any appreciable increase in reports critical of the judiciary. The reason, perhaps, is that this defence is available to the alleged contemner only at the sentencing stage, and the courts are free to find one guilty, irrespective of the amendment.

Besides, Section 13(b) of the Act — inserted by the amendment — gives wide discretion to the courts to admit truth as a defence to contempt proceedings if such a defence is in the “public interest”, and the request for invoking this defence is “bona fide”. The Parliamentary Standing committee which considered the Amendment Bill in 2005 was told by experts that there cannot be truth without bona fides, and when truth is there, public interest is also there. It was felt that imposing these twin limitations would virtually defeat the objective of justification by truth. Despite this, these vague limitations were included.

Internal criticism

If the 2006 amendment of the Act is controversial, the Act itself has come in for criticism from judges themselves. The Chairman of the Press Council, Justice Markandey Katju, had endorsed the eminent lawyer, Fali S. Nariman, in a lecture in 2007, saying: “Contempt jurisdiction is mercurial, unpredictable — capable of being exercised (and therefore in fact, exercised) differently in different cases and by different Judges in the same court”. He added that there are no rules, no constraints and no precise circumstances when the administration of justice is brought into contempt, and this part of the law of contempt is a standing threat to free expression.

The Supreme Court is seized of certain pending matters in which journalists have been arraigned as alleged contemners, and certain recent reports in the media which have raised issues of contempt. In keeping with its sense of magnanimity, the court has refrained from showing any sense of urgency in settling these matters. Hopefully, the tensions between two natural allies will get resolved in the spirit with which the two high courts had come to the rescue of beleagured journalists during the Emergency.

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